VBA Journal

WIN 2012

The VBA Journal is the official publication of The Virginia Bar Association.

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Terefore, the defnition of prospective client is fexible enough to address this growing trend.24 It is important to consider how a lawyer's electronic communication may create ethical duties. For example, if a lawyer's website encourages personal inquiries without any cautionary language, a person submitting an inquiry may become a prospective client under the Rule. If, however, the website does not encourage personal inquiries and lists only general information about the lawyer, such as contact information, experience, and practice areas, a person submitting an inquiry typically would not become a prospective client. Te person would have no reasonable expectation that the lawyer is willing to create a client-lawyer relationship.25 CONCLUSION Te new Rule 1.18 elevates the importance of the initial consultation with clients as well as the use of waivers to avoid disqualifcation. It also afords lawyers some protections from "taint shopping," since clients are aforded protections only if a reasonable expectation exists that a client-lawyer relationship may be formed. To avoid disqualifcation, limit the initial consultation in time and scope to information truly necessary to determine whether to form a client-lawyer relationship. Additionally, use waivers to obtain informed consent that any information received will not disqualify the lawyer from representing another client. Firms should remain cognizant of the imputed disqualifcation and how to avoid it through appropriate screening procedures or informed written consent. n Robert L. Freed is a shareholder in the frm of Freed & Shepherd, P.C., in Richmond. He has taught at the T.C. Williams School of Law and in the Graduate Tax Program at the School of Business at Virginia Commonwealth University. Freed is a frequent lecturer for Virginia CLE in the areas of legal ethics and estate planning. A member of the VBA, he has served as Chair of the Tird District Ethics Committee, Section II, and as Chair of the Disciplinary Board of the Virginia State Bar. 1 2 3 4 5 6 7 34 • VBA JOURNAL Te author expresses his appreciation to Courtney Newman, whose research and assistance were invaluable in preparing this paper. Unless otherwise noted, all references to Rule mean the Va. Rules Of Prof 'l Conduct (2004), available at http://www.vsb.org/proguidelines/index.php/rules/client-lawyer-relationship/. Virginia Comment [1]. Virginia Comment [2]. ABA Commission on Ethics 20/20 Revised Draft Resolutions for Comments - February 21, 2012. Comment [2]. Ethics opinions have tackled this topic. See, e.g., Va. State Bar Ethics Op. 1794 (2004). Te draft amendments to the comments on ABA Model Rule 1.18 say "[t]he reasonableness of the person's expectations may depend on a number of factors, including whether the lawyer encouraged or solicited inquiries about a proposed representation; whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer's obligations; whether those warnings or cautionary statements were clear and reasonably understandable; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements." ABA Commission on Ethics 20/20 Revised Draft Resolutions for Comments - February 21, 2012. 8 Rule 1.18(b). 9 Wisconsin Formal Opinion EC-10-03, Vol. 84, No. 3, March 2011. Note that while Virginia Rule 1.18, ABA Model Rule 1.18, and Wisconsin Rule 1.18 are not identical, they are substantially similar and deviate only in small part not applicable to this discussion. 10 Rule 1.9(c). Rule 1.6 covers when a lawyer may and shall reveal information covered by the attorney-client privilege. Rule 3.3 discusses candor toward the tribunal and the duty of a lawyer to disclose facts to the tribunal to avoid assisting in a criminal or fraudulent act by a client. 11 Rule 1.18(c). 12 Rule 1.18(c). 13 ABA Comm. On Ethics and Professional Responsibility, Formal Op. No. 90-358, n 12 (1990). 14 Wisconsin Formal Opinion EC-10-03, Vol. 84, No. 3, March 2011. From this, the opinion crafted a loose defnition of "signifcantly harmful." Te defnition stated: "Information may be 'signifcantly harmful' if it is sensitive or privileged information that the lawyer would not have received in the ordinary course of due diligence; or, if it is information that has long-term signifcance or continuing relevance to the matter, such as motives, litigation strategies, or potential weaknesses. [It] may also be the premature possession of information that could have a substantial impact on settlement proposals and trial strategy; the personal thoughts and impressions about the facts of the case; or information that is extensive, critical, or of signifcant use." 15 Virginia Comment [5]. 16 Virginia Comment [5]. 17 Wisconsin Formal Opinion EC-10-03, Vol. 84, No. 3, March 2011. 18 Wisconsin Formal Opinion EC-10-03, Vol. 84, No. 3, March 2011. 19 When relying on the ABA comments to Rule 1.18, it is important to be cognizant of the changes Virginia made to the ABA model rule. See e.g. Rule 1.18(d)(2). 20 Rule 1.18(d)(1). 21 Rule 1.18(d)(2). Note that the Virginia Rule varies from ABA Model Rule 1.18 here. Te Virginia Rule requires the disqualifed lawyer to reasonably believe that the screening will be efective to protect signifcantly harmful information that is received; and, that the written notice contain a description of the subject matter and screening procedures employed. 22 ABA Comm. On Ethics and Professional Responsibility, Formal Op. No. 90-358, n 12 (1990). Te Virginia Comments also caution the lawyer to limit the initial interview to only such information necessary to determine whether the lawyer wants to form a client-lawyer relationship. Virginia Comment [4]. 23 ABA Comm. On Ethics and Professional Responsibility, Formal Op. No. 90-358, n 12 (1990). 24 http://www.legalethicsforum.com/blog/2012/02/ethics-2020proposal-on-rule-118-duties-to-prospective-clients.html. 25 ABA Commission on Ethics 20/20 Revised Draft Resolutions for Comments - February 21, 2012.

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